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FIFTH
SECTION
CASE OF KOLOMOYETS v. UKRAINE
(Application
no. 11208/03)
JUDGMENT
STRASBOURG
15 July 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kolomoyets v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna Yudkivska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 11208/03) against Ukraine
lodged with the Court under Article
34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a
Ukrainian national, Mr Vladislav Vasilyevich Kolomoyets (“the
applicant”), on 29 April 2001.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
6 September 2007 the
President of the Fifth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
- The
applicant was born in 1961 and lives in the town of Zaporizhia,
Ukraine.
1. First set of proceedings
- In
June 2002 the applicant had a work-related accident in which he
was injured. Later he received the status of a partially disabled
person.
- On
14 August 2002 the applicant instituted proceedings against his
employer, the OJSC “Zaporizhshaskloflyus, seeking a declaration
that his disability had been caused by the injury. He also claimed
payment of UAH 33,000 (about 6,724 euros, EUR) in compensation for
non-pecuniary damage resulting from his disability.
- On
an unspecified date the State Insurance Fund for Work-Related
Accidents and Diseases (“the Fund”) joined the
proceedings.
- On
11 August 2003 the Zavodsky District Court of Zaporizhia (“the
District Court”) found against the applicant. On 1 December
2003 the Zaporizhia Regional Court of Appeal (“the Court of
Appeal) quashed that judgment and awarded the applicant UAH 500
(about EUR 76) in compensation for non-pecuniary damage, to be paid
by the Fund.
- On
24 December 2003 the applicant and the Fund lodged their appeals in
cassation with the Supreme Court.
- On
17 March 2004 the Fund enforced the judgment.
- In
January 2005 the applicant sent a request to the Supreme Court
seeking information about the state of the proceedings. By letter of
22 February 2005 the Supreme Court informed him that his appeal
had not yet been considered and that he would be
informed in due course of any decision taken by the Supreme Court.
- On
22 November 2005 the Supreme Court, in the applicant’s and the
Fund’s absence, dismissed their appeals in cassation.
- In
October 2007 the applicant sent a new request to the Supreme Court
seeking information about the outcome of his cassation appeal.
- By
letter of 2 November 2007 the Supreme Court informed the applicant
that, due to a clerical error, a copy of the ruling of
22 November 2005 had been sent to a wrong address in
December 2005.
- The
applicant received the letter of 2 November 2007 and the copy of the
ruling of 22 November 2005 on an unspecified date in November 2007.
2. Second set of proceedings
- On
10 October 2002 the applicant was dismissed from his job at
the OJSC “Zaporizhshaskloflyus”.
- On
4 November 2002 he challenged his dismissal before the District
Court. On 28 January 2003 the latter found against the
applicant. On 6 February 2003 the applicant appealed. In
accordance with the requirements of the applicable law, the applicant
filed his appeal with the District Court. The latter then transmitted
it to the Court of Appeal for consideration.
- On
26 February 2003 the Court of Appeal ordered the rectification of
some shortcomings of the applicant’s appeal and remitted the
case to the District Court. On 14 March 2003 the District
Court declined the applicant’s appeal against the judgment of
28 January 2003 since the applicant failed to rectify the
shortcomings within a time-limit allotted by the District Court. The
applicant appealed against the ruling of 14 March 2003. On
15 April 2003 the District Court declined his appeal since
the applicant failed to comply with procedural formalities. The
ruling of 15 April 2005 was not appealed against.
- In
April 2003 the applicant lodged a new appeal against the
judgment of 28 January 2003, having filed it with the
District Court. On 9 April 2003 the District Court declined
this appeal since it had been lodged outside the statutory
time-limit. On 8 May 2003 the District Court declined the applicant’s
appeal against the ruling of 9 April 2003 since the applicant missed
a time-limit. The applicant appealed. On 1 July 2003 the Court of
Appeal quashed the ruling of 8 May 2003 and remitted the case to the
District Court.
- On
6 August 2003 the District Court renewed a time-limit for appealing
against the ruling of 9 April 2003 and transmitted the
applicant’s appeal to the Court of Appeal.
- On
22 September 2003 the Court of Appeal upheld the decision
of 9 April 2003. The applicant lodged an appeal in
cassation against the decision of 22 September 2003. On 14 November
2003 the Supreme Court remitted the applicant’s appeal in
cassation to the District Court since the applicant had failed to
comply with procedural formalities.
- On
3 February 2004 the applicant lodged with the District Court an
amended cassation appeal against the decision of 22 September 2003.
On 23 February 2004 the District Court declined it due to
its procedural shortcomings. On 29 April 2004 the Court of
Appeal upheld the decision of 23 February 2004.
- In
May 2004 the applicant appealed in cassation against the decisions of
23 February 2004 and 29 April 2004. On 14 June 2004 the District
Court declined the applicant’s cassation appeal due to its
procedural shortcomings. On 4 August 2004 the Court of Appeal quashed
the decision of 14 June 2004 and remitted the case to the District
Court.
- In
August 2004 the applicant lodged an amended appeal in cassation
against the decisions of 23 February 2004 and 29 April 2004,
following the District Court’s instructions to rectify the
procedural shortcomings of his original appeal. In September 2004 the
District Court transmitted his cassation appeal to the Supreme Court
for consideration.
- On
21 March 2007 the Supreme Court quashed the decisions of
23 February 2004 and 29 April 2004. The Supreme Court further
remitted the case to the Odessa Regional Court of Appeal for
examination of the applicant’s appeal in cassation against the
decision of 22 September 2003. On 20 June 2007 the Odessa
Regional Court of Appeal, acting in its cassation jurisdiction,
dismissed the applicant’s appeal in cassation and upheld the
decision of 22 September 2003.
3. Third set of proceedings
- In
the period prior to December 1998 the applicant was working as an
Assistant of the Head of the Zaporizhia Temporary Detention Unit. As
a result of the negative appraisal given to the applicant in November
1998, he was downgraded. Following this event, he was transferred to
a lower position at the suburb of Zaporizhia.
- On
10 January 1999 the applicant was dismissed on the ground that he
failed to appear at his new work place. The applicant challenged his
transferral and dismissal. On 5 May 2000 the
Ordzhonikidzevsky District Court of Zaporizhia found against the
applicant. On 11 July 2000 the Zaporizhia Regional Court
upheld this judgment and it became final. Subsequently, the applicant
unsuccessfully tried to re-open the proceedings.
4. Fourth set of proceedings
- In
June 2001 the applicant instituted administrative proceedings in the
Komunarsky District Court of Zaporizhia, seeking to oblige the
Ukraine Savings Bank to return his indexed deposit.
- On
6 July 2001 the court found against the applicant. On 17 January 2002
the Court of Appeal quashed this judgment and discontinued the
proceedings, having found that the applicant’s complaint should
have been examined in civil proceedings.
- On
7 October 2002 the Supreme Court rejected the applicant’s
request for leave to appeal in cassation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE FIRST SET OF PROCEEDINGS
- The
applicant complained that the length of the first set of proceedings
had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 14 August 2002
and ended in November 2007 when the applicant was informed
about the final decision given in his case (see
Widmann v. Austria,
no. 42032/98, § 29,
19 June 2003, and Gitskaylo v. Ukraine, no.
17026/05, § 34, 14 February 2008). It thus lasted about
five years and three months for three levels of jurisdiction.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- As
for the issues that were at stake for the applicant, the Court notes
that following the work-related accident the applicant was classed as
partially disabled. The Court notes that the compensation
claimed by the applicant was of an undeniable importance to him.
- Concerning
the question of the complexity of the present case, the Court
observes that the domestic courts mainly had to establish whether the
applicant sustained any non-pecuniary damage and, if so, the amount
of the compensation to be paid. Therefore, the Court concludes that
the subject matter of the litigation at issue cannot be considered
particularly complex.
- As regards the conduct of the
judicial authorities, the Court notes
that the major delays in the proceedings were caused by the lengthy
consideration of the cassation appeals by the Supreme Court, and as a
result of the final decision not being served on the applicant in
good time (see paragraphs 11-15 above). The Court reiterates that it
is the role of the domestic courts to manage their proceedings so
that they are expeditious and effective. However, in the Court’s
opinion the Supreme Court did not act with due diligence.
- The Court has frequently found
violations of Article 6 § 1 of the Convention in cases raising
issues similar to the one in the present case (see Frydlender,
cited above, and Dogru
Avsar v. Turkey, no. 14310/05, §
8, 12 January 2010).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE SECOND SET OF PROCEEDINGS
- The
applicant further complained that the length of the second set of
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention.
- The
Government contested the applicant’s submissions, stating that
there had been no significant periods of inactivity attributable to
the State. They maintained that the judicial authorities had acted
with due diligence. According to the Government, the applicant had
been responsible for several delays.
- The
applicant disagreed.
- The
Court notes that the proceedings began on 10 October 2002 and ended
on 20 June 2007. Therefore, they lasted about four years and eight
months at three levels of the jurisdiction. During
this period the applicant’s claims were examined on the merits
by one level of jurisdiction within less than three months, and
subsequently the issue of the admissibility of his appeals – by
three levels.
- The
Court considers that the present case did not involve legal or
factual complexity.
- The
Court recalls that the proceedings at issue concerned the applicant’s
employment and so special diligence was necessary (see Ruotolo
v. Italy, judgment of 27 February
1992, Series A no. 230-D, p. 39, § 17).
- As
regards the conduct of the applicant, the Court finds that he also
contributed to the delays, particularly, by missing a time-limit for
lodging his appeal against the judgment of 28 January 2003
and appealing against the relevant procedural decisions.
The Court also notes that the applicant failed to comply with
the procedural requirements when lodging his appeals. In this respect
the Court reiterates that although a party to
civil proceedings cannot be blamed for using the avenues available to
him under domestic law in order to protect his interests, he must
accept that such actions necessarily prolong the proceedings
concerned (see Malicka-Wasowska v.
Poland (dec.), no. 41413/98, 5
April 2001).
- As
regards the conduct of the judicial authorities, the Court notes the
prolonged period of procedural inactivity from August 2004 to
March 2007 in
considering the applicant’s appeal in cassation. The
Court observes that the domestic courts hearing the case did attempt
to streamline the proceedings, since the hearings in the period prior
to August 2004 and after March 2007 were scheduled regularly. The
Court further notes that the applicant’s claim was
examined on the merits within less than three months, and that after
the appeal lodged in August 2004 had been allowed by the Supreme
Court, the proceedings were completed within three months.
- The
Court reiterates that a delay at some stage may be acceptable if the
overall duration of the proceedings cannot be deemed excessive (see,
for example, Pretto and Others v. Italy, 8 December 1983, §
37, Series A no. 71). In the present case, although the delay
attributed to the State could possibly have been avoided, it is not
such as to warrant the conclusion that there has been a violation,
given the total duration of the proceedings and that the applicant
had also caused certain delays.
- In view of the above, the Court concludes that the
length of the proceedings did not exceed a reasonable time within the
meaning of Article 6 § 1 of the Convention.
- It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
-
The applicant complained under Article 6 § 1 about unfairness
and outcome of the second set of proceedings. He further complained
under Articles 4 § 2 and 6 § 1 of
the Convention about the unfair outcome of the third set of
proceedings. Lastly, the applicant complained about being unable to
recover his indexed deposit. He invoked Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 in
this respect.
- Having
carefully examined the applicant’s submissions in the light of
all the material in its possession, and in so far as the matters
complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention.
- It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 100,000 in respect of non-pecuniary damage.
- The
Government contested the claim.
- The
Court considers that the finding of a violation constitutes
sufficient just satisfaction for any non-pecuniary damage which the
applicant may have suffered.
B. Costs and expenses
- The
applicant lodged no claim in respect of costs and expenses. The
Court, therefore, makes no award.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the first set of proceedings admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the first set of proceedings;
- Holds that the finding of a violation
constitutes sufficient just satisfaction for any non-pecuniary damage
which the applicant may have suffered;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 15 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
